Hudspeth v. Bunzey

241 S.E.2d 119 (1978) 35 N.C. App. 231

Lloyd HUDSPETH
v.
Robert S. BUNZEY and Elizabeth O. Bunzey.

No. 7726SC169.

Court of Appeals of North Carolina.

February 7, 1978. Certiorari Denied and Appeal Dismissed April 4, 1978.

William H. Booe, Charlotte, for plaintiff appellee.

Echols, Purser & Adams, P. A., by W. Thad Adams, III, Charlotte, for defendants appellants.

Certiorari Denied and Appeal Dismissed by Supreme Court April 4, 1978.

ARNOLD, Judge.

We first consider the appellee's argument that appellants' appeal from the denial of a motion to amend the pleadings is premature. Appellee correctly points out that the trial court's denial of appellants' motion to amend the pleadings is an interlocutory order. G.S. 7A-27(d) provides for appeals from interlocutory orders:

"From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which

(1) Affects a substantial right, or

(2) In effect determines the action and prevents a judgment from which appeal might be taken, or

(3) Discontinues the action, or

(4) Grants or refuses a new trial, appeal lies of right directly to the Court of Appeals."

See also G.S. 1-277.

In reviewing North Carolina cases dealing with appeals from interlocutory orders we find no case directly concerned with an appeal from a denial of a motion to amend the pleadings. Orders allowing amendments of pleadings are, as a rule, not appealable. See, e. g., Order of Masons v. Order of Masons, 225 N.C. 561, 35 S.E.2d 613 (1945). A case closer to the one before us, however, is Bank v. Easton, 3 N.C.App. 414, 165 S.E.2d 252 (1969), where this Court held that a trial court's striking of an entire further answer or defense was in substance a demurrer and immediately appealable.

By their motion to amend defendants are attempting to assert a second counterclaim which arises out of the same transaction and which is compulsory under G.S. 1A-1, Rule 13(a). Affirmative defenses must be specifically pleaded, G.S. 1A-1, Rule 8, and failure to assert a compulsory counterclaim will ordinarily bar future action on the claim. (See Comment, G.S. 1A-1, Rule 13.) We therefore conclude that the denial of a motion to amend the answer to allege a compulsory counterclaim affects a substantial right and is immediately appealable. Accordingly, we will review defendants' appeal from the trial court's denial of their motion to amend their answer to allege an affirmative defense and a compulsory counterclaim.

The question presented by this appeal is whether the trial court abused its discretion in denying defendants' motion to amend the pleadings. G.S. 1A-1, Rule 15(a) states:

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . ."

It is clear from the facts of the present case that defendants' amendment is possible only by leave of court. Our courts have consistently held that, in a motion to amend addressed to the sound discretion of the trial judge, the trial court has broad discretion in permitting or denying amendments. See, e. g., Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972).

While the order of the trial court is circuitously written we agree with plaintiff's argument that the court considered all attendant circumstances and concluded that justice did not require the amendment. The court found that plaintiff was in compliance with the licensing requirements of the statute; that the statutory requirements were available to both parties; and that defendants had waited too long to assert their defense and counterclaim. In view of the record in this case, which reflects that this action had been calendared for trial on previous occasions and that defendants waited sixteen months before attempting to amend their answer, we find no abuse of discretion.

The order denying defendants' motion to amend is

Affirmed.

PARKER and MARTIN, JJ., concur.